Experts: Ex-PSU president could still face charges

MICHAEL RUBINKAMAssociated Press Published: August 16, 2012 3:36 AM

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More than a month after an explosive investigative report accused Penn State's ousted president of burying child sex abuse allegations against Jerry Sandusky, Graham Spanier has so far avoided criminal charges -- unlike two of his colleagues.

That doesn't mean he's in the clear, according to legal experts.

As attorneys for Athletic Director Tim Curley and retired Vice President Gary Schultz try to persuade a Dauphin County judge to dismiss the case against them on Thursday, Spanier remains vulnerable to criminal charges over his alleged role in a scandal that has shaken Penn State to its core, outside lawyers said.

Former FBI Director Louis Freeh's university-commissioned report that accused the ex-president -- along with Curley, Schultz and football coach Joe Paterno -- of covering up a 2001 allegation against Sandusky could help lay the groundwork for a prosecution.

"The Freeh report, whose findings of fact and conclusions were not challenged by PSU, suggests potential liability for Spanier," said Paul DerOhannesian, an Albany, N.Y., defense attorney and former sex-crimes prosecutor who has been following the Penn State case.

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"If I was in the state AG's office, I would seriously be looking at" a criminal case against Spanier, said another defense lawyer, Will Spade, a former Philadelphia prosecutor who worked on a grand jury investigation of priests about a decade ago.

A spokesman in the attorney general's office, Nils Frederiksen, declined to comment, citing an "ongoing and active investigation" into the Sandusky matter.

There could be a number of reasons why prosecutors haven't moved against Spanier, who led Penn State for 16 years until leaving office under a cloud four days after Sandusky's arrest. Prosecutors could have evidence that contradicts the findings of the Freeh report, for example. Or they could simply be taking their time to strengthen a potential case against Spanier, DerOhannesian said.

"There is nothing particularly unusual in no charges yet filed," he said via email. "After all, how many years did it take any prosecutor to charge Jerry Sandusky?"

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Sandusky, the longtime architect of Paterno's football defense, was convicted in June of sexually abusing 10 boys. He awaits sentencing on 45 counts.

Curley and Schultz were charged in November with failing to report suspected child abuse, as required by law, and perjuring themselves before the grand jury investigating Sandusky. They have pleaded not guilty. The defendants themselves will not be in court Thursday as their lawyers argue their case.

Spanier, meanwhile, has kept a low profile since the early days of the scandal that cost Paterno his job, tarnished Penn State's reputation and led to unprecedented NCAA sanctions against the football program. He has issued a handful of written statements since the July 12 release of the Freeh report but has otherwise largely disappeared from public view.

What is known is that Spanier performed top-secret national security consulting work for the federal government. His security clearance underwent a four-month review after Sandusky's arrest in November, and was reaffirmed -- proof, suggested Spanier, that he has done nothing wrong.

Spanier also remains a tenured faculty member at Penn State, although he is on sabbatical until December and it is unclear whether he will return. University spokesman Dave La Torre said only that Spanier's "status is under review," declining to elaborate.

There's no indication that Penn State has launched disciplinary proceedings against Spanier, who did not respond to a request for comment from The Associated Press.

The release of the Freeh report has raised questions about Spanier's handling of a 2001 allegation by a former graduate assistant who caught Sandusky sexually assaulting a young boy in the Penn State football showers.

Spanier, in his five-hour interview with Freeh, told investigators that Schultz and Curley gave him few details of the incident, telling him only that Sandusky had been "horsing around" with a boy. Spanier said he told Curley that Sandusky would be banned from bringing youths into Penn State showers.

"Had I known then what we now know about Jerry Sandusky ... I would have strongly and immediately intervened," Spanier, whose professional expertise is in family therapy and sociology, wrote in a July 23 letter to the Penn State board of trustees. "Never would I stand by for a moment to allow a child predator to hurt children."

Yet the Freeh investigation uncovered documents from 2001 that seem to indicate Spanier had deeper knowledge, including an email in which the president appeared to agree with Curley's decision to keep the 2001 assault from child-welfare authorities, and instead work directly with Sandusky and Sandusky's charity for at-risk youths.

"The only downside for us is if the message isn't 'heard' and acted upon, and we then become vulnerable for not having reported it," said Spanier's email, dated Feb. 27, 2001. "The approach you outline is humane and a reasonable way to proceed."

Spanier has denounced the Freeh report as "full of factual errors," asserting it took the email out of context and "jumps to conclusions that are untrue and unwarranted." Penn State accepted the conclusions of the report, which the NCAA used as the basis for leveling severe penalties against Penn State, including a $60 million fine, a multi-year bowl ban and a reduction in athletic scholarships.

Penn State is paying the legal bills of Spanier, Curley and Schultz under an indemnity policy for trustees and officers. Spanier has also retained the title of president emeritus. La Torre, the Penn State spokesman, said Spanier is contractually entitled to it.

In a July 23 letter, the once-powerful and nationally regarded president lamented that his reputation has been "profoundly damaged." He asked the board of trustees for an audience so he could give his side.